In the high court of south africa



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Ad paragraphs 100 to 104

  1. Just as the defence for Zuma indicted their eagerness to commence with the trial, so too did the State indicate clearly the following:

      • that the investigation was not yet complete,

      • that the evidence recovered during the searches could not yet be analysed, inter alia, because of the litigation concerning them,

      • that the forensic report was not yet complete and that this could only be delivered in some 5 months hence, depending on the outcome of the litigation,

      • that the indictment was provisional in the sense that it did not and could not yet encompass all of the further evidence discovered as a result of the further investigations completed and still to be completed,

      • that, all-in-all, the State required time to continue and complete the further investigations.

    1. It was on the common understanding above that the parties reached agreement: the provisional indictment would be provided to the defence but the State would be permitted to continue with the investigation.

    2. The only point of dispute presently is thus whether the subsequent delay, recognizing that the State would and could continue the investigation, is such that a postponement of the trial should be granted. Given that the State has had little control over the unforeseen delays that are not of its making, the postponement of the trial has become inevitable and justifiable.

  1. Ad paragraph 105

    1. The meeting with the Judge President was held shortly after the court appearance of 11 October 2005. According to Downer and Steynberg the only matter settled at this meeting was the trial date, in accordance with the agreement reached on 11 October that this would be so arranged with the Judge President. The agreement reached at the court appearance of 11 October 2005 thus remained, as Du Plooy indicated in paragraph 15 of his founding affidavit and as reflected in ‘JDP4’ and ‘JDP5’ thereto. It was central to the agreement that the State must be accorded the opportunity to complete the further investigation and amend the indictment accordingly. The agreement concerning the envisaged timetable was thus conditional, both in its express terms (‘the State would endeavour to comply with the timetable’) and in effect.

    2. Inasmuch as the above contradicts annexure ‘T’ to Zuma’s affidavit, annexure ‘T’ is disputed.

  2. Ad paragraph 106

    1. This paragraph is disputed.

    2. It would be in no party’s interests to withdraw the charges.

    3. The accused would face the certainty of being indicted afresh, after which they would inevitably raise again the present arguments. The matter would be removed from the control of the court.

    4. From the point of view of the State, it is entitled to effect arrests on the basis of the reasonable suspicion that crimes have been committed and to ask the court for reasonable adjournments to enable it to complete any necessary investigations. Such is the case at present. The policy considerations supporting the decision to arrest and place the matter on the role pending further investigations are fortified when the reasonable suspicion of the commission of offences has itself been unusually tested by the prior court proceedings.

    5. I refer to my detailed explanation above concerning the legal and policy considerations that govern the NDPP’s duty to institute a prosecution – it is not required that investigations must first be concluded before the matter is enrolled.

    6. I again deny that there is any ulterior motive in the State’s seeking a reasonable adjournment.

  3. Ad paragraph 107

This paragraph is disputed.

  1. Ad paragraph 108

The contents of this paragraph are noted, although the significance of who represented Zuma at that stage is not apparent. It is accordingly common cause between the State and the defence that the matter was adjourned from 29 June 2005 to 11 October 2005 for further investigation.

  1. Ad paragraph 109

    1. I reiterate that the NDPP is entitled to charge an accused person prior to the completion of further investigation. Any motive for charging Zuma, other than the due execution of the duties of the NPA, is denied.

    2. I must mention again that the further investigation encompasses more than merely the search and seizure operations that were conducted.

  2. Ad paragraph 110

This paragraph is not disputed.

  1. Ad paragraph 111

This is disputed.

  1. Ad paragraph 112

    1. The merits of these allegations and Zuma’s mens rea will be tested in the trial.

    2. The evidence surrounding the payments to Zuma clearly indicates that they were designed to keep Zuma in politics for the mutual advantage of at least Shaik and Zuma. It is not improbable that the payments continued on this basis until 2005.

  2. Ad paragraph 113

    1. The contents of this paragraph are disputed.

    2. It is incorrect that the State did not attempt to traverse the later payments with Shaik in the witness stand. He refused to expand on this issue or to provide any documents, other than to admit that the payments were continuing. He claimed that they were diminishing. Consequently, this had to be investigated.

    3. Whether or not the later payments themselves form the basis for further charges, such payments are in any event relevant to the State’s case and they require to be investigated.

    4. It is specifically denied that the search and seizure operations were conducted with any purpose other than to obtain evidence relevant to the charges.

  3. Ad paragraph 114

    1. The arguments in this paragraph are disputed.

    2. It is denied that the further investigation that must reasonably be completed is a ‘cloak’ for any ulterior purpose.

    3. The contention that the State may not investigate the accused’s defence is surprising in the light of the defence’s contradictory claim that the State is obliged to investigate all relevant aspects, whether incriminating or exculpatory.

    4. It is illuminating, by way of example, that an accused person is obliged to give notice to the State of his or her intention to rely on an alibi, precisely to enable the State to investigate such alibi.

    5. The investigation of the circumstances of the revolving loan agreement remains relevant and current.

  4. Ad paragraph 115

    1. The argument raised in this paragraph is disputed.

    2. I reiterate that the State is entitled to investigate this matter fully.

  5. Ad paragraph 116

The argument raised in this paragraph is disputed.

  1. Ad paragraph 117

    1. The argument raised in this paragraph is disputed.

    2. Whether or not Shaik is listed as a State witness, his evidence at his trial was delivered under oath and it is not hearsay. Nor was it elicited under the NPA’s powers of interrogation. The State is entitled to investigate all the relevant circumstances surrounding Shaik’s and Zuma’s meeting with Thétard in March 2000 that Zuma apparently denies.

    3. Zuma’s answers to questions were not obtained in terms of the NPA’s powers of interrogation.

  2. Ad paragraph 118

    1. This paragraph is disputed.

    2. The State is entitled to investigate the matter properly.

  3. Ad paragraph 119

The State is entitled to rely on all objective circumstances that have hindered the investigation. It is not contended that Zuma has been responsible for the delays – this is not the test. Nevertheless, the documents seized at the Union Buildings in Pretoria formed part of Zuma’s application to have the search warrants set aside.

  1. Ad paragraph 120

    1. The analysis of the thousands of documents and the computer data is a lengthy and time-consuming process. It was indeed commenced as soon after the search and seizure operations as possible, but it has been hampered by the litigation.

    2. I can only reiterate my description of the obvious process of further investigation arising, inter alia, from documentation. As relevant documents are identified, so are the witnesses relevant to those documents. It is impossible to name these witnesses, as they are unknown before the documents are identified.

    3. Perhaps the process may be better understood by referring to the investigation of Shaik’s payments to Zuma:

      • Each potential payment must be identified as relevant to the investigation

      • Supporting bank documents from both Shaik’s and Zuma’s side must be identified and requested

      • Once these are analysed, supporting documents to the particular transaction must be identified and requested

      • The relevant payees must be identified and traced. Preparatory interviews must be conducted with a view to identifying relevant documents in the possession of the payee. The payee must then provide an affidavit or be questioned under oath.

      • This process is replicated, mutatis mutandis, regarding any relevant new document.

    1. I deny that my description of the investigation should carry no weight. My description is true.

  1. Ad paragraph 121

    1. This paragraph is disputed.

    2. As I have stated, the State attempted, without success, to obtain the information from Shaik during his trial.

    3. The relevant records have indeed been subpoenaed from financial institutions. This once again is a very time-consuming process. Once the records have been identified and obtained, they must be analyzed. This again takes time. All of this has contributed to the fact that the forensic report is not yet complete.

  2. Ad paragraph 122

    1. This paragraph is disputed.

    2. It is specifically denied that legitimate further investigation can be typified as ‘a mandate to rescue’ the charges.

    3. It is obvious that the production of the forensic report, conducted in accordance with the broad mandate described, is time consuming and dependant on the availability of documentation.

    4. I once again deny that Du Plooy’s description of the investigative process ‘has no factual import’. It is noted that Zuma is not able to produce evidence that contradicts my description of the process. His assertion to the contrary is merely argumentative.

  3. Ad paragraph 123

    1. The arguments tendered in this paragraph are disputed.

    2. I dispute the anecdotal synopsis of the events described.

  4. Ad paragraph 124

The State has proposed herewith a reasonable timetable which indicates that Zuma will not be ‘told what the charges actually are’ years hence.

  1. Ad paragraph 125

This paragraph is disputed.

  1. Ad paragraph 126

    1. This paragraph is disputed.

    2. I deny that my statements are misleading. The process of obtaining the relevant information from Kogl has been, and remains, extraordinarily difficult throughout the investigation. This is a relevant consideration contributing to the delay and it is largely beyond the control of the State, despite its best efforts.

  2. Ad paragraph 127

    1. It is correct that the payments from Reddy and Fakude-Nkuna were identified during the initial investigation. They were duly investigated. Nevertheless, it was reasonably thought that further relevant documentation would be obtained by way of the search and seizure operations that were authorized.

    2. It is denied that it was impermissible to indicate the circumstances surrounding these payments in the applications for the search warrants.

    3. Zuma’s response to the invitation to reply to questions was specifically not covered by the provisions of section 28 of the NPA Act.

  3. Ad paragraph 128

    1. The meaning and relevance of this paragraph is unclear. It is in any event disputed.

    2. If it is meant to imply that the search and seizure operations that were conducted were either not authorized or that they did not fall within the mandate of the investigations, then this is specifically denied.

    3. I have mentioned above the irrelevance of the argument that attempts to say that this investigation should only be about the arms deal.

  4. Ad paragraph 129

    1. It is admitted that dates of the Kogl affidavits are 15 June 2002 and 8 March 2004. This may give some indication of the difficulty that was encountered in obtaining the affidavits. It is also an indication that Kogl was unwilling to be interviewed. This matter remained unresolved, necessitating the search of his premises in 2005.

    2. Despite filing papers to have the search warrants set aside, Kogl has not taken steps to enrol the matter and the State is entitled to act in accordance with the valid terms of the search warrants.

  5. Ad paragraph 130

This paragraph is not disputed.

  1. Ad paragraph 131

The contents of this paragraph are noted.

  1. Ad paragraphs 132 and 133

    1. The contents of these paragraphs are noted.

    2. It remains an inescapable fact that the various court procedures relating to the search and seizure operations have delayed the course of the investigation, whatever effect they may have in the future.

    3. It is denied that the State has approached any of the court procedures with any lack of urgency.

  2. Ad paragraph 134

It has been explained above that the request for documentation is not related to the request for further particulars. Also as explained, all the documentation that could be provided was provided as soon as the State received the requests from the accused.

  1. Ad paragraph 135

The contents of this paragraph are noted.

  1. Ad paragraph 136

    1. It is quite impossible for the State to provide the defence with hard copies of all the millions of documents that appear on all the computer hard drives.

    2. The State is not in possession of such hard copies and it can only provide the defence with what it has, namely the hard drives, as it has.

    3. The virus cannot be removed because that is how the hard drives were received and the State must not tamper with the hard drives provided.

    4. When the forensic report and its annexures are available, these will be provided in hard copy to the defence.

  2. Ad paragraph 137

    1. Insofar as this paragraph is argumentative, it is denied.

    2. The State indeed provided Shaik with further particulars. The request was received very shortly before the trial was due to commence and some 6 months after the final indictment and the forensic report had been provided to him. There was no significant further investigation holding up the completion of the forensic report and the indictment.

  3. Ad paragraph 138

While it is correct that the State had regard to whatever documents became available after the searches, the investigation of such was interrupted by the legal challenges. This was the case with the Zuma/Hulley documents and the report could not be finalized without progress regarding the appeal or settlement. In the circumstances, the auditors could not be instructed prior to 23 May 2006 to complete the report.

  1. Ad paragraph 139

    1. The contents of this paragraph are noted.

    2. It will be for the defence to determine in what manner it wishes to conduct its preparation for trial.

  2. Ad paragraph 140

    1. A timetable is proposed with this reply.

    2. The State cannot commit itself to any date without the intervention of the defence and the Court.

  3. Ad paragraph 141

    1. The forensic report in respect of Zuma is different from that in the Shaik matter.

    2. It is significant that the forensic report in the Shaik matter was produced well after he had been charged and the matter enrolled. The defence reasonably allowed the State time to complete its investigation and produce the forensic report, other than in the present matter.

    3. It is denied that there was any ulterior motive for charging Zuma.

  4. Ad paragraphs 142 to 143

These paragraphs are disputed.

  1. Ad paragraph 144

This paragraph is argumentative and it is disputed.

  1. Ad paragraph 145 to 157

These paragraphs are disputed.

  1. Ad paragraph 158

    1. The NDPP did refer to the fact that the decision not to prosecute was subject to review. This is invariably the case when a decision is made not to prosecute.

    2. It is disputed that there was anything improper in the decision to prosecute Shaik and not to prosecute Zuma.

  2. Ad paragraph 159

I reiterate my contentions regarding the Shaik appeal. This is only one factor amongst the others that affected the trial date. The timetable now proposed does not take account of a judgment in the Shaik appeal.

  1. Ad paragraphs 160 to 163

The contents of these paragraphs are noted

  1. Ad paragraph 164

This paragraph is disputed.

  1. Ad paragraph 165

    1. There is in principle no difference in the nature of the evidence that the State obtained in the Shaik and the present matters, although this matter encompasses a great deal more documents. As I have stated, the defence would in any case have had to request an adjournment to prepare for trial.

    2. The conduct of the pre-trial proceedings in the Shaik matter were similar to the present. He was provided with a provisional charge sheet, the matter was postponed for further investigation and the forensic report. The final indictment and the forensic report were provided when the investigation was effectively complete for this purpose. Just as in the present case, the charges were only finalized when the final indictment was served.

THE FIRST AFFIDAVIT OF PIERRE JEAN MARIE ROBERT MOYNOT

  1. Ad paragraphs 3.1 and 3.2

It is admitted that the State and accused have agreed, on the suggestion of the legal representatives of Zuma dated 11 July 2006, that the State’s application for an adjournment would be made by means of an ‘exchange of affidavits in advance of the application’. The legal representatives of Thomson Holdings and Thomson (Pty) indicated that they were agreeable to this procedure.

  1. Ad paragraphs 3.3 and 3.4

    1. If it is suggested that these contents of these paragraphs reflect the agreement between the parties, this is denied. The terms of the agreement are set out in the abovementioned correspondence.

    2. It is furthermore disputed that the accused ‘will be entitled to insist’ that the State call the evidence of witnesses in support of its application for an adjournment. It is admitted, however, the Court has a discretion to call for viva voce evidence in accordance with section 342A of the CPA. In the present case, it is submitted, there is no need for viva voce evidence and indeed it would be undesirable.

  2. Ad paragraphs 4 and 5

These are admitted.

  1. Ad paragraph 6

The contents of this paragraph are disputed. It is specifically denied that the State has conducted itself with ‘tardiness, ineptitude and indecisiveness’ and that the investigations and prosecution ‘were conducted with little or no regard for the duties and obligations imposed upon the National Prosecuting Authority’.

  1. Ad paragraphs 7.1 to 7.3

These are admitted.

  1. Ad paragraph 7.4

This is strenuously disputed. As will appear more fully below, it is alleged that, if anything, it is the conduct of Thomson Holdings and Thomson (Pty) which has fallen short of the requisite standards.

  1. Ad paragraphs 8 to 9

These are admitted.

  1. Ad paragraph 10

This is disputed

  1. Ad paragraph 11

This is noted.

  1. Ad paragraphs 13 to 16

These are admitted.

  1. Ad paragraph 17.1

This is admitted.

  1. Ad paragraph 17.2

This is noted.

  1. Ad paragraph 18

Save that it is admitted that being subjected to a search may in certain circumstances lead to negative publicity, the rest of this paragraph is disputed. The deponent is typically vague regarding the precise nature of the alleged prejudice suffered.

  1. Ad paragraph 19

This is admitted.

  1. Ad paragraph 20

This is admitted, save that the date of the announcement was 23 August 2003.

  1. Ad paragraph 21

This is admitted.

  1. Ad paragraph 22

It is admitted that such a meeting was arranged by Driman. It is recorded that this was not the first time that the Minister and the NDPP had been approached on behalf of Thomson Holdings and Thomson (Pty) and/or Thales International. The remainder of the paragraph is not admitted.

  1. Ad paragraphs 23 to 28

    1. It is admitted that such a meeting occurred and that the parties described were present. It is admitted that representations were made to Maduna and Ngcuka. Save for this the contents of this paragraph are disputed. It is specifically disputed that any agreement was reached at this meeting to withdraw the charges.

    2. In Moynot’s answering affidavit dated 23 August 2004, he explicitly admits that ‘[i]t is correct that this first meeting did not result in any agreement.’ It is significant that he makes no mention of any ‘legitimate expectation’ that was allegedly created at this meeting. It is apparent that, having realised that the correspondence between the parties which recorded the progress of the negotiations and the agreements reached does not support their version of events, Thomson Holdings and Thomson (Pty) have changed tack by seeking to rely on alleged events of which no accurate records exist.

    3. I note that Thomson Holdings and Thomson (Pty) have not put up an affidavit by Driman confirming their version of the events and disputing the version put forward by the State.

    4. The events of this meeting are set out in more detail in the confirmatory affidavits of Maduna and Ngcuka and elsewhere in this affidavit.

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